Opinion
00 Civ. 0735 (AJP)
October 2, 2000
OPINION AND ORDER
Pro se plaintiff Julius Spohn challenges the legality of the holiday displays exhibited by his employer, the Department of Veterans Affairs Medical Center, in public areas of the Manhattan VA Hospital during the 1998 and 1999 December holiday seasons. Defendant moves to dismiss for failure to state a claim. The parties have consented to disposition of this action by a Magistrate Judge pursuant to 28 U.S.C. § 636(c).
For the reasons set forth below, Spohn's First Amendment claim is dismissed with leave to replead and his Title VII claim is dismissed with prejudice.
FACTS
On a motion to dismiss, the Court must accept the well-pleaded allegations in the complaint as true. See, e.g., Comer v. Cisneros, 37 F.3d 775, 802 (2d Cir. 1994); Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir. 1989); Sherman v. Harper Collins Publishers, Inc., 98 Civ. 2809, 1998 WL 437158 at *1 (S.D.N.Y. July 31, 1998) (Peck, M.J.); LaSalle Nat'l Bank v. Duff Phelps Credit Rating Co., 951 F. Supp. 1071, 1081 (S.D.N.Y. 1996) (Knapp, D.J. Peck, M.J.).
Julius J. Spohn, who is Catholic, alleges that his employer, the Department of Veteran Affairs Medical Center ("the Center" or the "VA Hospital") in Manhattan, violated his rights by displaying symbols of the Jewish religion, but not the Christian religion, in public areas of the hospital during the 1998 and 1999 December holiday seasons:
During the holiday seasons of 1998 and 1999, the director of the hospital had the Christian religious symbols removed from the public areas, while at the same time, instructed hospital employees to go out and purchase Jewish religious symbols and displays, thereby violating my Christian religious viewpoints and traditions, in favor of another religion and viewpoints. As a Christian, I feel this violates my rights and my freedom of speech and expression, as well as that of my fellow Christian veterans and employees.
(Compl. ¶ 8.)
Spohn alleges that from 1992 through 1997, "religious traditions and customs were treated equally every holiday season," but that in 1998, the Christian religious symbols were taken down and a Menorah was purchased with government funds. (Compl. Attachment: 12/21/99 Spohn Letter at 1; see also Compl. Attachment: 12/14/99 Letter from The American Center for Law Justice at 1 (repeating facts Spohn told it).) In December 1999, according to Spohn, the VA Hospital "put up numerous `Happy Hanukkah' signs in the public areas of the hospital, but not one `Merry Christmas' or similar sign mentioning the Christian meaning of the holiday." (Compl. Attachment: 12/21/99 Spohn Letter at 1.) It appears that menorahs were displayed along with toy soldiers, Christmas trees and Santa Clauses, which Spohn considers secular symbols (id. at 3), and "posters celebrating Kwanza" and "signs mentioning Muslim prayer services." (Compl. Attachment: 12/14/99 American Center for Law Justice Center Letter at 1-2; see also Dkt. No. 7: Spohn Aff. at p. 4.)
According to Spohn, the Center Director stated that he had removed the prior Nativity scene based on advice from the Center's attorneys and "that he would never again permit a Nativity Scene in the public areas of the hospital." (Compl. Attachment: 12/14/99 American Center for Law Justice Letter at 1.)
Spohn's 12/21/99 Letter is addressed to the Court and appears to be his amplification of paragraph 8 of the Complaint. In any event, on a motion to dismiss, the Court may consider documents attached to the complaint as an exhibit. See, e.g., Paulemon v. Tobin, 30 F.3d 307, 308-09 (2d Cir. 1994); Brass v. American Film Tech., Inc., 987 F.2d 142, 150 (2d Cir. 1993); LaSalle Nat'l Bank v. Duff Phelps Credit Rating Co., 951 F. Supp. at 1081.
During informal agency EEO proceedings, Spohn had complained about a Star of David in the Hospital cafeteria, and the Center removed that symbol. (Compl. Attachment: 1/26/99 EEO Counselor's Report at 2, 3.)
Spohn's complaint attaches a copy of the Center's December 5, 1997 memorandum explaining its holiday season decorations policy:
1. Some questions have been raised regarding the proper display of winter holiday decorations in the Medical Center. members of my staff have met with the Protestant, Catholic, and Jewish Chaplains to resolve these issues. Based on the consensus reached, I am writing to provide some guidelines to assist staff in preparing for the upcoming holiday season.
2. Traditionally, we have sought to decorate the Medical Center in a manner that would be a source of pleasure for patients, visitors, and staff. In particular, we want to help patients in the hospital during the holiday season share some of the joy they might feel at home. As a federal government agency, we must find ways to achieve these goals while being mindful of the Constitution and its requirement to separate "church and state." While the courts have not provided detailed guidance on this issue, they do offer some general directions for achieving this.
3. The court opinions define certain symbols as secular, and others as religious. Christmas trees, toy soldiers, wreaths, and reindeer are examples of secular holiday season decorations. Nativity scenes and Hanukah Menorahs are considered religious symbols. Court opinions state religious symbols may be displayed on government property only when they are part of larger displays of secular symbols.
4. Therefore, holiday displays in "public" areas of inpatient units can include religious symbols when they are part of larger secular decorations. If religious symbols are displayed, they should be representative of the religions in our Medical Center community.
(Compl. Attachment: 12/5/97 Medical Center Letter No. 97-97.)
Spohn specifically advised the agency EEO counselor that he was not seeking the removal of the Jewish symbols but wanted the display of "symbols or scenes of the Christian religion, such as the Nativity or the Star of Bethlehem." (Compl. Attachment: 1/26/99 EEO Counselor's Report at 1, 2, 3.)
Spohn filed a charge with the EEOC on January 26, 1999 (see Compl.¶ 10), received a right to sue letter on October 2, 1999 (see Compl. ¶ 12), and timely filed this action on December 21, 1999, alleging continuing religion- based discrimination under Title VII (see Compl. ¶¶ 4-7). On April 27, 2000, the Center moved to dismiss. (Dkt. No. 5.)
ANALYSIS I. SPOHN'S FIRST AMENDMENT ESTABLISHMENT CLAUSE CLAIM IS DISMISSED WITH LEAVE TO REPLEAD
Challenges to government-sponsored displays of religious symbols implicate the Establishment Clause of the First Amendment which provides that "Congress shall make no law respecting an establishment of religion. . . ." U.S. Const. Amend. 1. The "principle at the heart of the Establishment Clause [is] that government should not prefer one religion to another, or religion to irreligion." Board of Educ. of Kiryas Joel v. Grumet, 512 U.S. 687, 703, 114 S.Ct. 2481, 2491 (1994). "Establishment Clause caselaw applies a highly fact-specific test to government-sponsored [displays of religious symbols]: Would a reasonable observer of the display in its particular context perceive a message of governmental endorsement or sponsorship of religion?" Elewski v. City of Syracuse, 123 F.3d 51, 53 (2d Cir. 1997) (citing cases), cert. denied, 523 U.S. 1004, 118 S.Ct. 1186 (1998); see also, e.g., County of Allegheny v. ACLU, 492 U.S. 573, 597, 109 S.Ct. 3086, 3103 (1989) (Blackmun, J.) ("[T]he [Supreme] Court has made clear that, when evaluating the effect of government conduct under the Establishment Clause, we must ascertain whether `the challenged governmental action is sufficiently likely to be perceived by adherents of the controlling denominations as an endorsement, and by the nonadherents as a disapproval, of their individual religious choices.'"). This hypothetical observer "`must be deemed aware of the history and context of the community and forum in which the religious display appears.'" Creatore v. Town of Trumbull, 68 F.3d 59, 61 (2d Cir. 1995) (quoting Capitol Square Review Advisory Bd. v. Pinette, 515 U.S. at 780, 115 S.Ct. at 2455 (O'Connor, J., concurring)).
In Lamont v. Woods, 948 F.2d 825, 829-31 (2d Cir. 1991), the Second Circuit held that taxpayers have standing to challenge how an agency spent funds authorized to it by Congress, even though Congress did not mandate that the agency spend it in the manner alleged to violate the Establishment Clause. Here, Spohn alleges that the Center used government funds to purchase Menorahs. (Compl. Attachment: 12/14/99 American Center for Law Justice Letter at 1; see also Spohn Aff. at p. 4.) While Spohn does not allege taxpayer status in the present complaint, the Court assumes Spohn, who is employed by the government, is a federal taxpayer. The Center has not challenged Spohn's standing to assert the First Amendment claim. See Mehdi v. United States Postal Serv., 988 F. Supp. 721, 727 n. 6 (S.D.N.Y. 1997) (Sotomayor, D.J.).
Spohn also contends that the Center engaged in unconstitutional "viewpoint discrimination" in contravention of his free speech and free exercise rights. (Spohn Aff. at pp. 8-11; Spohn Reply Br. at 4-5.) The Free Speech and Exercise Clauses, however, are implicated only where the government has restricted a plaintiff's speech or burdened a plaintiff's exercise of his religion, not where, as here, the government is the speaker. See, e.g., Capitol Square Review Advisory Bd. v. Pinette, 515 U.S. 753, 765-66, 115 S.Ct. 2440, 2448 (1995) (plurality opinion) (distinguishing between "`government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect'"); Mehdi v. United States Postal Serv., 988 F. Supp. at 724. In Mehdi, Muslim plaintiffs challenged the Postal Service's display of Christmas trees and Chanukah Menorahs without the display of Muslim religious symbols. In then-District Judge Sotomayor's free exercise analysis, she held that government holiday displays do not require the government to allow individuals to display religious symbols on government (non-public forum) property. Id. at 725-27 n. 5. Here, as in Mehdi, Spohn has not alleged that he attempted to set up a creche or display other Christian religious symbols and was stopped from doing so; rather, as in Mehdi, "plaintiffs' complaint is directed at the large-scale lobby and building decorations." Id. at 727 n. 5; see also, e.g., County of Allegheny v. ACLU, 492 U.S. 573, 601 n. 51, 109 S.Ct. 3086, 3105 n. 51 (1989) ("Nor can the display of the creche be justified as an `accommodation' of religion. Government efforts to accommodate religion are permissible when they remove burdens on the free exercise of religion. The display of a creche in a [government building] does not remove any burden on the free exercise of Christianity. Christians remain free to display creches in their homes and churches."). Spohn's complaint, therefore, need only be analyzed under the Establishment Clause, not the Free Exercise Clause. to the extent the complaint alleges a Free Exercise or Free Speech claim, it is dismissed with prejudice.
Factors to consider in determining whether a religious symbol appears as a governmental endorsement of religion include the symbol's location and its arrangement in relation to other elements in its setting. See, e.g., County of Allegheny v. ACLU, 492 U.S. at 598-600, 109 S.Ct. at 3103-04. "The government may acknowledge Christmas as a cultural phenomenon, but under the First Amendment it may not observe it as a Christian holy day. . . . [G]overnment may celebrate Christmas in some manner and form, but not in a way that endorses Christian doctrine." Id. at 601, 109 S.Ct. at 3105. Similarly, "Chanukah, like Christmas, is a cultural event as well as a religious holiday. . . . Just as some Americans celebrate Christmas without regard to its religious significance, some nonreligious American Jews celebrate Chanukah as an expression of ethnic identity, and `as a cultural or national event, rather than as a specifically religious event.'" Id. at 585, 109 S.Ct. at 3096-97. Accordingly, holiday displays including religious as well as secular symbols of the holiday season have been upheld, whereas displays of religious symbols standing alone in locations associated with core governmental functions have been struck down. For example, in County of Allegheny v. ACLU, the Supreme Court held that a stand-alone creche on the central staircase of a county courthouse violated the Establishment Clause, but that the display of a menorah next to a Christmas tree and a sign saluting liberty passed constitutional muster. Compare, e.g., Lynch v. Donnelly, 465 U.S. 668, 671, 685-87, 104 S.Ct. 1355, 1358, 1365-66 (1984) (upholding display of a creche in a display with numerous secular holiday objects and decorations including a Christmas tree and depictions of Santa Claus); ACLU v. City of Florissant, 186 F.3d 1095, 1096-97, 1098 (8th Cir. 1999) (same); ACLU of New Jersey v. Schundler, 168 F.3d 92, 95, 105-08 (3d Cir. 1999) (upholding display which included creche, menorah, Kwanza symbols as well as secular holiday decorations including a Christmas tree, Santa Claus); Elewski v. City of Syracuse, 123 F.3d 51, 52-53, 54-55 (2d Cir. 1997) (same), cert. denied, 523 U.S. 1004, 118 S.Ct. 1186 (1998); with, e.g., Chabad-Lubavitch v. City of Burlington, 936 F.2d 109, 111-12 (2d Cir. 1991) (stand-alone menorah in front of City Hall violative of Establishment Clause), cert. denied, 505 U.S. 1218, 112 S.Ct. 3026 (1992); Kaplan v. City of Burlington, 891 F.2d 1024, 1028-30 (2d Cir. 1989) (same), cert. denied, 496 U.S. 926, 110 S.Ct. 2619 (1990).
Because the Supreme Court and the lower federal courts have upheld publicly-funded displays of religious symbols including menorahs in appropriate contexts, in order for Spohn's complaint to survive a motion to dismiss, Spohn would have to allege that the context in which the menorahs were displayed at the Center would lead a reasonable observer to perceive them as a governmental endorsement of Judaism. See, e.g., County of Allegheny v. ACLU, 492 U.S. at 598-600, 109 S.Ct. at 3103-04; Elewski v. City of Syracuse, 123 F.3d at 53-54; Mehdi v. United States Postal Serv., 988 F. Supp. at 729. Spohn has failed to make any such allegations and indeed, as noted above, the documentation accompanying Spohn's complaint indicates that there were secular holiday symbols throughout the hospital (see, e.g., Compl. Attachment: American Center for Law Justice Letter at 1-2) and that the menorah in the hospital lobby was next to a Christmas tree (see Compl. Attachment: EEO Counselor's Report at 1-2) — facts which would weigh against a finding that the Center's holiday display violated the Establishment Clause.
Because Spohn has not alleged specific facts about the Center's holiday displays which if true would entitle him to relief, his First Amendment Establishment Clause claim is dismissed, with leave to replead within 30 days if Spohn believes he can provide the Court with a more detailed description of the displays sufficient to show their unconstitutionality under the Supreme Court's Establishment Clause cases discussed above. The Court notes, however, that while Spohn's complaint contains boilerplate language seeking "such relief as may be appropriate" (Compl. at p. 5), it appears that what Spohn really seeks is the reincorporation of the nativity scene in the Center's holiday display (see, e.g., Compl. Attachment: EEO Counselor's Report at 2, 3: "Mr. Spohn advised . . . that all he wanted was equal representation for his belief . . . in the form of a Nativity scene."). Although the Center may not be prohibited from displaying a creche in addition to a menorah in the appropriate setting, see cases discussed above, there is no authority for the proposition that such a pairing is constitutionally required. Thus, Spohn is advised that even if he were to amend his complaint and prevail on the merits, this Court cannot order the Center to include a creche in its holiday display.
Spohn's First Amendment Establishment Clause claim is dismissed with leave to replead, if factually appropriate, within 30 days.
II. SPOHN'S TITLE VII EMPLOYMENT DISCRIMINATION CLAIM IS DISMISSED WITH PREJUDICE
Spohn's Title VII religious employment discrimination claim appears to be based on hostile environment and disparate treatment theories. (See Compl. ¶ 4; Spohn Aff. at pp. 2-4; Spohn Reply Br. at 2, 5-6, 9.)
A. Hostile Work Environment Hostile Work Environment
For a discussion of the legal principles governing Title VII employment discrimination claims generally, see, e.g., Adeniji v. Administration for Children's Servs., 43 F. Supp.2d 407, 418-20 (S.D.N.Y.) (Wood, D.J. Peck, M.J.), aff'd mem., 201 F.3d 430 (2d Cir. 1999).
To establish a hostile work environment claim, Spohn must allege that the Center's conduct was:
"sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Harris v. Forklift Sys., 510 U.S. 17, 21, 114 S.Ct. 367, 370 (1993) (internal brackets and quotation marks omitted) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 2405 (1986)). The conduct must be intimidating, hostile, or offensive, with discriminatory intimidation, ridicule, and insult permeating the workplace. See Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d Cir. 1995). All of the circumstances must be considered; a reasonable person would have to find the environment hostile or abusive, and the victim must have subjectively so perceived it. See Harris v. Forklift Sys., 510 U.S. 17, 21-23, 114 S.Ct. 367, 370-71 (1993); Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d Cir. 1995).
Gallagher v. Delaney, 139 F.3d 338, 346-47 (2d Cir. 1998); accord, e.g., Adeniji v. Administration for Children's Servs., 43 F. Supp.2d 407, 422 (S.D.N.Y.) (Wood, D.J. Peck, M.J.), aff'd mem, 201 F.3d 430 (2d Cir. 1999); see also, e.g., Torres v. Pisano, 116 F.3d 625, 630 (2d Cir.), cert. denied, 522 U.S. 997, 118 S.Ct. 563 (1997); Cosgrove v. Sears, Roebuck Co., 9 F.3d 1033, 1042 (2d Cir. 1993). "Conduct that is `merely offensive' and `not severe or pervasive enough to create an objectively hostile or abusive work environment'" is insufficient to establish a Title VII discrimination claim. Torres v. Pisano, 116 F.3d at 631; accord, e.g., Adeniji v. Administration for Children's Servs., 43 F. Supp.2d at 422; see also, e.g., Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 2283-84 (1998) ("The standards for judging hostility are sufficiently demanding to ensure that Title VII does not become a `general civility code'. . . . We have made it clear that conduct must be extreme to amount to a change in the terms and conditions of employment. . . ."); Harris v. Forklift Sys., Inc., 510 U.S. at 21, 114 S.Ct. at 370 ("Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment-an environment that a reasonable person would find hostile or abusive-is beyond Title VII's purview.").
Even if Spohn were to replead and the Court were to find that the Center's holiday displays violated the Establishment Clause, there is absolutely nothing in the complaint that even remotely suggests the possibility that the holiday displays permeated Spohn's workplace with the sort of severe and pervasive discriminatory intimidation which would give rise to a hostile work environment claim. Moreover, if the display violated the Establishment Clause, Spohn's Title VII claim would appear to be duplicative. And as a matter of public policy, the Court finds that a December holiday display in a government workplace open to the public — particularly a government hospital — that does not violate the Establishment Clause cannot as a matter of law violate Title VII. Otherwise, a public employee could use Title VII to prevent holiday displays that pass muster under the First Amendment Establishment Clause. Such a result would make no sense.
B. Disparate Treatment
Disparate Treatment A plaintiff alleging disparate treatment under Title VII must show, inter alia, that he was subject to an adverse employment action. See, e.g., Adeniji v. Administration for Children's Servs., 43 F. Supp.2d 407, 419-20, 424 (S.D.N.Y.) (Wood, D.J. Peck, M.J.) (citing cases), aff'd mem, 201 F.3d 430 (2d Cir. 1999). As the Second Circuit has observed, while adverse employment action is not defined solely in terms of job termination or reduction in wages and benefits, "`not every unpleasant matter short of [discharge or demotion] creates a cause of action.'" Wanaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997) (brackets in original); accord, e.g., Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996) ("while adverse employment actions extend beyond readily quantifiable losses, not everything that makes an employee unhappy is an actionable adverse action" under Title VII.). Rather, a plaintiff must establish that he has suffered a "`materially adverse change in the terms and conditions of employment.'" Torres v. Pisano, 116 F.3d 625, 640 (2d Cir.), cert. denied, 522 U.S. 997, 118 S.Ct. 563 (1997).
Here, Spohn contends that the hospital director's removal of the creche denied him a privilege he had formerly enjoyed as a Center employee. (See Spohn Aff. at pp. 2-4.) While Spohn may have been offended by the hospital's removal of the creche and its purchase and installation of Jewish religious symbols, the Center's actions are not adverse employment actions under Title VII. See, e.g., Bunis v. Runyon, 94 Civ. 2063, 1997 WL 639241 at *3-4 (S.D.N.Y. Oct. 16, 1997) (plaintiff's subjective feelings did not transform employer's denial of her shift transfer request into adverse employment action within meaning of Title VII).
CONCLUSION
For the reasons set forth above, Spohn's Title VII claim is dismissed with prejudice and Spohn's First Amendment Establishment Clause claim is dismissed with leave to replead, if appropriate, within 30 days.
SO ORDERED.